Kenya’s polls agency on the spot over power to bar contestants

Kenya’s electoral body could be in for a deluge of legal suits in its bid to bar aspirants with questionable integrity from contesting in the August 8 general election.

Under pressure from civil society to raise the bar on who can run for public office, the Independent Electoral and Boundaries Commission has said it will rely on reports from watchdog institutions to block those suspected of being corrupt.

Legal experts are split on IEBC’s authority, with some saying only the courts, except in cases of inadequate academic qualifications, can declare an aspirant unfit to run for public office. Others point to cases where misdemeanours cost incumbents jobs to prove that the IEBC has too sweeping a mandate.

A multiagency vetting team is reviewing complaints against 15,082 out of the total 16,000 aspirants for their alleged involvement in corruption, hate speech, forged academic papers, those who have been convicted of major crimes or those currently in court, as per Chapter 6 of the Constitution.

The IEBC will on May 28 start clearing aspirants. Those who have not been found guilty of the alleged offences say they will challenge the commission’s decision in court if they are barred.

Article 75 (3) of Chapter 6 says “A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clauses on integrity is disqualified from holding any other state office.

Dr Carey Francis Onyango, chief executive of the Centre for Multiparty Democracy, says the issue is likely to raise a lot of legal questions because even parliament does not have judicial powers to bar anybody from contesting. He argued that Chapter 6 applies to those already holding public office and not for potential office holders.

Vetting turning political

“If the courts have declared one unfit to hold public office, then that is a serious matters and one cannot contest. But parliament is a political process that can make mistakes. Most of the issues that are being used to vet aspirants are matters of ethics and boil down to individual moral standing,” said Dr Onyango.

He says that there is a danger of the whole vetting issue turning political because if one candidate from a certain party is barred, it is likely to be interpreted as IEBC favouring a certain party and the parties affected are likely to go to court to be allowed a replacement.

There are also chances that some of the affected could go to court to ask for the suspension of the election itself, because some parties will go without candidates and the time for replacement is already over.

The Leadership and Integrity Act, 2014 says that “State officers should exhibit highest level of responsibility in the administration of public affairs tasking them to have conduct that his beyond reproach”.

Again, Article 193 of the Constitution says that “A person is disqualified from being elected if serving a sentence of imprisonment of at least six months; or which has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter 6.

But Article 50(b) stipulates the right to be presumed innocent until proven guilty, meaning they can contest elections while the case is ongoing.